We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

The Federal Circuit Court of Appeals has rejected not-for-profit Consumer Watchdog’s appeal of the U.S. Patent and Trademark Office’s (USPTO’s) determination that Wisconsin Alumni Research Foundation (WARF) could retain patent rights to human embryonic stem cell cultures. Consumer Watchdog v. Wis. Alumni Research Found., No. 13-1377 (Fed. Cir., order entered June 4, 2014). Consumer Watchdog challenged WARF’s stem cell patent under the inter partes system, which allows a member of the public to file for patent reexamination, claiming that the patent hindered scientific research. After USPTO affirmed its decision to issue WARF’s patent, Consumer Watchdog appealed to the Federal Circuit Court of Appeals, which dismissed the appeal because of Consumer Watchdog’s failure to establish an injury in fact sufficient to confer standing to the organization.

To invoke federal jurisdiction by proving standing, the court explained, the party must show that (i) “it has suffered an ‘injury in fact’ that is both concrete and particularized, and actual or imminent (as opposed to conjectural or hypothetical)”; (ii) “the injury is fairly traceable to the challenged action”; and (iii) “it is likely, rather than merely speculative, that a favorable judicial decision will redress the injury.” The court further noted that the latter two requirements may be relaxed under the direction of Congress—such as when Congress has given parties the right to appeal the decision of an administrative agency like USPTO—but that even then the party must allege an injury in fact rather than a mere general grievance.

Consumer Watchdog failed to show standing, the court held, because the organization did not prove any injury in fact. “Consumer Watchdog does not allege that it is engaged in any activity involving human embryonic stem cells that could form the basis for an infringement claim. It does not allege that it intends to engage in such activity. Nor does it allege that it is an actual or prospective licensee, or that it has any other connection to the [WARF stem cell] patent or the claimed subject matter.” Instead, Consumer Watchdog’s appeal amounted to a general grievance only.